Pretrial Decision-Making in Brazil under Inter-American Human Rights Law

In recent decades, pretrial detention has been a key contributor to Brazil’s mass incarceration. This is true, despite domestic and international norms limiting pretrial detention to exceptional circumstances and mounting evidence linking it to worse outcomes for arrestees in their criminal proceedings and post-release life prospects. As a longitudinal multivariate pretrial research in Brazil, this Article investigates the key mechanisms and factors that explain pretrial detention in relation to inter-American human rights standards. This Article conducts a quantitative case study of the first one hundred days of detention for all 2,158 non-confidential flagrant arrests in the first eight months of 2016 reviewed by the state courts of Campo Grande, the capital city of the midwestern state of Mato Grosso do Sul. The findings offer a grim picture of a non-exceptional use of pretrial detention, mostly through orders issued by bail hearing judges denying release based on public order rationales (incapacitation and anticipated punishment). Additionally, these findings show consistently high judge-specific rates of denial of release. Reasons for the high number of pretrial detention also include outright illegal denials of release, the long duration of orders denying release, and instances where denial of release is disproportionate to a case’s ultimate outcome. Release by bail was found to be an insignificant pathway to pretrial detention. The increased severity of an arrestee’s offense and adult and juvenile records revealed a strong link to a worse pretrial status. The magnitude of these effects, combined with evidence that judges tend to rely on the latter factors to assess public order grounds for denial of release, reinforces concerns over abusive detention orders. Lastly, this Article makes proposals that target the Brazilian pretrial regulation, the culture of key judicial actors, and the structure underlying pretrial decision-making.